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AMERICAN HISTORICAL ASSOCIATION 



MILITARY (iOVERNMENT (IF SOI'THEHN TEKRITOIiV. IMil-lsr),) 



A. II. (AKPENTEK. A. M. 

HAKVAIM) rM\ KHSITV 



(Kiiiiii tilt' Aiiimul Itcimri ul ilic Aiiieri<aii ]Iistnri(;il Ass<iii:il ion for limo. 
Vol. I. p.i'ies 465-4nS.) 



WASHINGTON: 

GOVERNMENT PRINTING OFFICE. 

;i 9 1. 



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XII.— MILITARY DOVERNMENT OF SOUTHERN TERRITORY, l.S()l-186o. 



By A. H. CARPENTER, A. M., 
HARVARD UNIVERSITY. 



H. Doc 5-1-S. pt 1 30 4fi5 



:^A 



MILITARY GOVERNMENT OF SOUTHERN TERRITORY, 1861-1865. 



Bv A. H. ('AiU'KNTKK, A. M., Ilarvanl rnivcrsitv. 



When the civil war broke out, the Governnieiit of the United 
"States found itself confronted with man}- and per])lexint;' 
questions. Treason had penetrated into every hi'anch of the 
Administration, and from (lovernment resources made prepa- 
ration for the coming- rebellion. A laro(> number of the States 
were already in arms, preparing to light for what they con- 
sidered their rights. Still others wt'i-e wavering in their alle- 
giance, for they were slaveholding communities, and thus 
bound in sympath}^ with the great Southern institution. Ad- 
joining these States were others which, though not holding 
negro slavery, were closely connected, at least in certain sec- 
tions, with the South b}- ties of relationship and commerce'^ 
Besides all this, the seat of the Government was in the midst 
of slave territory, and thus cut oil' from the sources from 
which it must draAV its defense. The Governnicnt had not 
oidy to raise troops to suppress the coming storm, but it nuist 
also make sure of its coDimunications with the Noi-th; elements 
of treason in the border States must be held in check and sup- 
pressed in order that its power might act as a unit, and finally 
the slave States which had not as yot joined in the n^lxdlion 
must be kept to the side of the rnion. 

As a means to the acconjplisJnnent of these (mkIs, military 
government was put in force and exercised to a limited degree 
throughout the North,' while the border States came under 
its complete control. The latter may. for our purposes, be 
considered Southern territory. Here, then, was instituted 
the first military government of the civil war, an institution 
which spread and developed as the territory of the Southern 
States was reclaimed from rebellion. 



' ni the North military government took the form of .suspension of hjilietis curpii.^ luul 
arhitrsiry arrest. See Official Recordsof the Rebellion, Series 11, vols. 1 unci •_'. i Published 
by the United States Government.) Ilereulter referred to "is o. K. K. 

4b7 



468 AMERICAN HISTORICAL ASSOCIATION. 

Before tracing the outlines of tliis oovernraent and examin- 
ing the functions that it exercised, it is necessary that we get 
some idea of what military govermnent is. 

I. 

Both definition and explanation become necessary, for the 
reason that this institution is commonly regarded as some- 
thing unreasonable, tj-rannical. and without just foundation. 
Military government may l)e roughly destined as that which is 
exercised by military officers, or In^ men with military powers, 
over hostile territory. It has been asserted that such govern- 
ment could only be put in force over foreign territory, but 
this limitation is ol)viously absurd, and "hostile'" applies to a 
country in rebellion as well as to that which is foreign. Civil 
war confers the same rights as a foreign conflict, so at least it 
was held by the Supreme Court in the "prize cases.''' This 
is further brought out in the decision rendered in the case of 
Tyler t». Defrees, which sa^^s: "We do not believe that the 
Congress of the United States, to which is conlided all the 
great powers essential to a perpetual union, the power to make 
war, to suppress insurrection, to levy taxes, to make rules 
concerning captures on land and sea. is deprived of these 
powers when the necessity for their exercise is called out by 
domestic insurrection and internal civil war; when States, for- 
getting their constitutional obligations, make war against the 
nation and confederate together for its destruction.""^ There 
is also a kind of military government which is not enforced 
over hostih^ territory at all, such as that which holds sway 
upon military reservations and posts and within the Army 
itself; l)ut for our purpose this may be largely disregarded. 

Further (examination shows that it has a constitutional and 
legal basis, and that it draws its life from the Constitution, mili- 
tary and martial law. and the acts of Congress. In the lirst 
certain war powers are given to the President and to Congress, 
and ])y implication, as a means of carrying these out, military 
government is thereby sanctioned. The President is made the 
Chief Executive, the Conmiander in Chief of the Army, and 
has the dutv of defending the Constitution. In order that the 



'■J KliK'k. f:M\. 
^J WliitiiiK, '^ti-. 



MILTTARY (iOVERNMENT OF SOTTTHKKN 'I'KHIU Tc >K V. 4(V.l 

last should he upheld, ho may he foi-ced to make use of this 
institution. Ao-aiii, tlie Constitution ])i-o\i{les for the suspen- 
sion of the writ of lm])eas e()i-])us. which in itself estal>lisl)es 
a form of military o-overnment. As a means of i)i'o\ idiup- U>v 
the common defense and uciieral Avelfare. of ouai'anteeino- ii 
repul)lieari form of o-overnment, and seeing- that tlie citizens of 
one State luive tlieir rights in anothei-. military uoviM-mncnt 
may l)ecome necessary and often th(>only means of accomplisii- 
ing- these ends. TIk^ })owei\sof the President as militai-\- com- 
mander are little, if at all. pi-escrihed hy tiie Constitution, and 
their scope and intention are not given in i)reeise terms. He 
only makes use of these powers when the land and naval forces 
ai-e called into the Held, hut on the other hand the laws of Avar, 
which alone could check his power, plainly esta])lish his right 
to erect such governments and maintain them hy force of 
arms.' Their constitutionalit}" have been upheld hy the 
•Supreme Court in the case of Cross v. Harrison.- 

Besides the Constitution we have military and martial law, 
the latter being the broader term and corresponding to the com- 
mon law in that it is a collection of unwritten customs and 
principles, ''regulating the rights. lial>ilities, and duties, and 
the social, municipal, and international relations in time of 
war of all persons, whether neutral or iK'Uigerent.'"'' Birk- 
himcrsays that "Martial law is that rule which is established 
when civil authority in the counnunity is made subordinate to 
military, either in repelling invasion or when the ordinaiy 
administration of the laws fail to secure the proper o])jects of 
govermneiit."* Thus it is based upon the necessities of war, 
is associated with the suspension of habeas corpus, and' applies 
not only to belligerents, but also to neutrals. Hence the ordi- 
nary constitutional rights are subordinated to this law, and 
the result may be the suspension of tho freedom of the press 
and of speech, the trial of men without jui-y. and the taking 
of property without due process of law. ' 

Alongwith this should be placed military law, which includes 
the Artich^s of War, enactments relating to discipline, aiiny 
regulations, general and special ordersof military commaudcis. 

1 William Whiting, Military GoTernment of Hostile Territory, pp. 19-20 (Boston, 1864). 
^This case grew nut of military government of California. Si'c ItJ How., 1G4. 
■'William Wliitiiig. War Power,* under the Conslitntion, p. ItMi (Boston, 1871). 
^W. Birkhinur. Military Government and Martial Law, p. 291 (Washington, 1892). 
^William Whiting. W.ir Powers, cte., ]ip. .')9-G0. 



470 AMERICAN HTSTORIOAL ASSOCIATION. 

Tho first iirc for th(' enforcement of dis('ii)liiH> iuid the crini- 
iiuil administration of tiio Army, which inchules civilian fol- 
lowers. Amonjj- other enactments are those reg-ulatin^- oenci:! I 
courts-martial and the jurisdiction of the same. Then. too. 
Coiii^ress has passed certain statutes providing- for the use of 
the Ai-ni}' in times of insurrection, has established military 
reservations, and in two well-known instances put in force 
military i^'ovcrnment pui"e and simple, i. e,. in California and 
New Mexico. 

The o-overnment thus established expects and enforces obe- 
dicnci^ to itself. The alleg'iance of the inhabitants is ow'ed to 
it, and all former relationshij)s are done awa}- with or sus- 
pended, and the conquerors will becomes supreme over the 
occupied territorv. All its laws and reiiulations ma}' be 
swept awa} ,, but as a g-eneral rule the municipal law is re- 
tained, so far as it does not hinder the objects of the war. This 
practice is upheld l)y international law and by the United States 
Army Reg'ulations, parag'raph (5 — ''All civil and penal law 
shall continue to take their usual course in the enemy's places 
and territories unless intprrupted or stoppi^d l)y order of the 
occupying militar}' power.'' ^ The same is further shown in a 
decision of the Supreme Court in the case of Ketchum ?'. Buck- 
ley: "'It is settled ])v law that the same general form of 
government and same general law for the administration of 
justice and the protection of private rights which has existed 
in the States previously in rebellion remained during its con- 
tinuance and afterwards."- Thus we find that the military 
courts in the South were governed by the rules of evidence 
and the laws of the State in which they acted. ^ Consequently 
military goveriunent loses much of its arbitrary character, 
which at first sight appears so prominent. This idea is in- 
creased when it is remembered that the ofKcers in command 
were subject to highei- commanders and to the President, 
which meant that each was responsible to a higher power. 

Having thus obtained a brief idea of what military govei'ii- 
mcnt is. we must next pass to a survey of the exttMit and work- 
ing of the same. As already pointed out, this institution was 
first established in the border States — Marjdand, Kentucky, 



' Birkhimer, Military Government and Martial Law, p. 93. 

29-) r. S. Reports, p. 390. 

» Birkhimer, Military Government and Martial Law, ji. 390. 



MILITARY GOVERNMENT OF SOUTHERN TERRITORY. 471 

and ]Mi8.souri — which still supported the Constitution and 
were .still members of the Union. Nevertheless they were 
put under a form of military government which differed but 
little from that which was established in the South as parts 
of its territory were reconcjuered. The southern parts of 
Ohio, Indiana, and Illinois were also touched by it in the form 
of military commissions winch snpcrscd(>d to a certain extent 
the civil courts.^ 

II. 

The first step toward the estal)lisnment of such government 
was the declaration of martial law and the sus})ension of the 
writ of habeas corpus.'' April 21), 1861, the President sus- 
pended the writ between Washington and Philadelphia, thus 
bringing- Maryland under military rule. This action was 
taken apparentl}^ for the purpose of protecting the conunmii- 
cations with the North, and it is interesting to note that the 
Federal Government for the first time in its history so acted. 
A conflict with the courts at once arose in the case of Merry- 
man, of Maryland, who had lieen arrested bv military author- 
ity. A writ was issued bv Supreme Court Justice Taney, 
calling upon General Cadwallader to deliver the prisoner to 
the court. This was refused, and the question came before 
the President, who asked the opinion of the Attorney-General. 
The latter upheld the power of the Chief Executive to declare 
martial law and suspend the writ. A similar case arose in St. 
Louis, Mo., where Emmett ^IcDonald was arrested during 
Ma}^ and held in spite of habeas corpus. 

December 2, 1861, Lincoln authorized General Halleck to 
declare martial law in Missouri,' which may have been done 
to prevent strife with the courts, and also because necessitj^ 
demanded it. On September 24 of the following year the 
President suspended habeas corpus in the District of Colum- 
bia and other parts of the country for men who were rebels, 
insurgents, aiders or abettors of the same in the United 
States, those discouraging enlistments, resisting the draft, 

iThe trial by military courts of citizens in States where civil courts were still open 
was condemned and overthrown in case of Ex parte Milligan. See 4 Wall., 2. 

- Lincoln defended suspension of habeas corpus in various letters. See Lincoln's Works, 
V. 2, pp. 345, 360 (N. ¥., 1894). 

3 Ibid., V, 2, p. 541. 



472 AMERICAN HISTORICAL ASSOCIATION. 

guilty of disloyal ])riicti('Ps (a voiy general term), giving aid 
or comfort to tht^ eiioniy—all these were subject to martial 
law and lia])le to trial by eourt-martial or military commis- 
sion/ September 15, 1863, another proclamation was issued 
which applied to the whole country, including not only the 
border and Southei'n States, Init the North as well. As late 
as fluly 5, 18(54, a special proclamation was put Jforth relating 
to the suspension in Kentucky. All such legislation was 
purely a national ati'air, but it is ])}' no means the whole of 
what was done in this line, for the commanders issued supple- 
mentary proclamations, sometimes to carry out the national 
ones and sometimes for the special conditions of their own 
departments. 

Alongside of martial law, and in part growing out of it, 
there developed an extensive system of arrests, which was 
used freely in the border States throughout the war. The 
extent to which they suHered in this may be judged from the 
fact that out of 175 persons arrested and confined in Fort 
Lafayette between July and October of 1861, 40 were from 
Maryland and 16 from Kentucky, Mncluding judges, memliers 
of legislatures, and editors of newspapers. In the beginning 
the power of arrest was exercised by the State Department 
alone, and then concurrently with the War Department, and 
finally by the latter exclusively. 

At first men were arrested with no other authority than an 
order from Washington, but as the war went on a special ma- 
chinery was developed which penetrated into all parts. Thus, 
by an order of August 8, 1862, Stanton said that United States 
marshals, superintendents, and chiefs of police of any town, 
cit}", or district Avere to arrest any person who discourages 
enlistments or indulges in anj^ other disloyal practice. Imme- 
diate report of all such ai'rests were to be made to the Judge- 
Advocate-General, in order that those arrested might be tried 
by military commission.^ Another step was taken to supple- 
ment this when the President, on September 26. authorized 
the appointment of a Frovost-^NIarshal-General, with office at 
Washington, and one or more provost-marshals in each State, 
who received instructions from and reported to the Provost- 



1 T.inooln's Works, v, 2, p. 239. 

- Aimnal Encycloijcriiii, lS(il, p. litU. 

■Mngcrsoll, Exet'Ufive Arrests, p. v (I'liil., lH(i2). 



MILITARY G()VEKNMP:NT uf southkkn tkrkitokv. 47'^ 

Marshal-(Toneral. These moii Avero to ari'(»st all disloyal i)('i- 
sons upon a warrant of the Judg'e-A(lvocate-(T(Mieial, and \ver( 
to inquire into and report treasonable practices. They were 
(^iven the power to employ citizens, constables. shei-iH's. police 
officers, and, if necessary, could call upon the iiean^st niilitaiv 
force to help them in their operations.^ The prisons finally 
l»ecanie so filled with political prisoners that Lincoln appointed 
a special conuuission, consisting' of (ienei'al Dix and lion. 
Edwards Pierrepont, of New York, to investigate these eases, 
and, where necessary, release the prisoners.' This is another 
curious bit of machinery, half military and half civil in char- 
acter. 

With this summary of martial law, the foundation of mili- 
tary government, and of arbitrary arrest, its first work, we 
pass to the further devc^lopment of the system. 

III. 

Immediateh^ after the attack upon the Fedei-al ti-oops in 
their march through Baltimore, Butler was appointed to tli(> 
command of the city and its neighborhood. Here it s1k)u1(1 
be noted that, outside of the politicians and a few of the 
southern counties, the ;State was strongly for the riiion.'* As 
this territory was under martial huv by the proclamation of 
April 29, the commanders had full power to act as the}^ 
thought best, and General Banks, upon taking command, ap- 
pointed a provost-marshal for the State, and made all police 
ofhcers subordinate to him. The result was that the police 
commissioners of Baltimore ordered the disbandment of the 
force. As the functions of this board had already been sus- 
pended by military order, they were arrested and a new force 
of 400 men established.* This was followed on September 12 
by an order for the arrest of meml)ers of the legislature who 
were suspected of sympathy with the South, (reneral Dix 
says that three-fourths of this body were known to be for 
secession, and to previMit l)lo()dshed the general ordered their 
arrest. In fact, upon taking connnand. inuncdiately after Bull 

1 B. R. Curtis and G. P. Lowrey, Executive Power, p. vii (N. V., 1863). 
- Lincoln's Works, v. 2, p. 127. 

^Lalor, Encyclopedia of Political Scienc.^, Political Kconoiny. luid I iiilcd States His- 
tory, V. 2, p. 814 (Chicago, 1884). 
■• Annual Encyclopedia, 1861, p. 58-59. 



474 AMERICAN HISTORICAL ASSOCIATION. 

Run, tho same commandor found that open sympathy was 
being expres,sed in Baltimore for the South, and the rebel flag- 
was being carried upon the streets.* 

The question of arresting the legislature had come up the 
preceding spring, and we find Lincoln writing to Scott as 
follows: 

I therefore conclude that it is only left to the conimandin<j: general to 
watch and wait their action, which, if it shall be to arm their people 
against the United States, he is to adopt the most prompt and efficient 
means to counteract, even, if necessary, to the bombardment of their 
cities, and, in the extremest necessity, the suspension of the writ of habeas 
corpus.^ 

This order is interesting, for it was issued before the regu- 
lar proclamation and foreshadowed the coming policy of dele- 
gating such authority to others, and especially in leaving it to 
the military commanders as a matter of discretion. 

In 1863 the whole State was put under martial law. certain 
clubs were closed l)ecause they were known to have Southern 
members, and a careful search was made for arms. An iina- 
sion of the Commonwealth furnished a reason for this action. 
November 9, 1864, the former slaves were put under militaiy 
jurisdiction and a Freedman's Bureau established, because 
the ancient slave code was being used to keep the negroes in 
bondage. Here it should be noted that this was entirely 
beyond the jurisdiction of the militar}^ commanders, for the 
emancipation proclamation did not apply to Maryland, and 
hence it was a matter for State control and action. A clause 
of the .State constitution, adopted in October, had provided 
for abolition, and hence it was the State authorities who 
should have acted. This was not the first case of army inter- 
ference with the negro question in Maryland, for in 1862 a 
William H. Offutt, who had recovered a slave by legal proc- 
ess, was arrested on the ground that the negro was under 
military protection. We also find a system of tines and taxes 
levied upon rebel sympathizers of Maryland for the support 
of the poor and needy. ^ and those confiscations were remem- 
bered with great bitterness.* The courts do not seem to have 
been interfered with and internal administration was left 
.done, except in the cases mentioned. 

1 John A. Dix, Memoirs, v. 2, p. 26, 32; edited l)y >rorgau Dix ( N. V.. 1S,S:5). 

- Uncoln's Works, v. 2, p. 38. 

''For example of such an order, O. K. K., s. 1, I't. II, v. 13, p. 587. 

■i Lalor, Encyclopedia, v. 2, p. 815. 



MILITARY GOVERNMENT OF SOUTHERN TERRITORY. 475 

Turning- from Maryland to Missouri, wo find greater super- 
vision exercised hy the commanders. On the last da}' of July, 
1861, General Pope gave orders that every county seat and 
town of any size in northern Missouri should be visited 
by a military forct', and in each a committee of public safety 
was to be appointed. These persons were to be selected from 
all parties, and nuist have social, domestic, and pecuniary 
interests at stake. These committees w(M"(» to be limited to 
five persons, and no one appointed could decline or fail to 
perform his duties, und(^r such penalties as the general might 
fix. The bodies thus established were to maintain peace and 
order in their respective conununities, and to them was given 
the power to call out the citizens to aid in these objects. All 
people who refused such a call were turned o\er to the mili- 
tary authorities, and if any county should not be able or will- 
ing- to enforce the peace the military forces were to perform 
the service at the expense of the count}-.' 

August 31, 1861, General Fremont declared maitial law in 
the following terms: 

Circnmytances, in n\y judjj^nu'nt, of suHiciciit urui-ncv render it necessary 
that the commandino; general of thin department should assume the admin- 
istrative powers of the State. * * * The ol)jeet of this declaration is 
to place in the hands of the military authorities the power to fjive instant 
effect to the existing laws and t<> supply such deficiencies as the condition 
of the "war demands.'' 

This was issued appartMitly without any direct authority 
from the President, and is a good illustration of such legis- 
lation. Itjplearly shows tlie reason why martial law is estab- 
lished, and further says that the ordinary tribunals .are to 
continue and the law is to be administered by civil otticers so 
far as they can peaceably exercise their functions, l)ut in all 
cases it is the military comuumder who becomes the final judge. 
Fremont went further and declared the slaves free, but this 
Lincoln revoked. On fbinuary 9, 1862, the provost-marshal 
ordered all newspapers in Missouri, St. Louis excepted, to 
furnish him a daily copy for inspection, upon pain of having 
their papers suppressed.'' Thus was the most strict censor- 
ship of the press undertaken. PeopI(> were forbidden to move 
out of the country without a permit, ministers of the gospel 



1 O. R. R., s. II, V. 1, p. 195. 
-Animal Encyclopedia, l.SGl, p. 491. 
3 Ibid., 1SH2, p. .VJO. 



47fi AMERIOAlSr HISTORICAL ASSOCIATION. 

were interfered with, and property" of all sorts was confiscated. 
Elections were carefully regulated, labor legislation was insti- 
tuted, and the loyalty of boards of trade, railroad directors, 
and members of library boards was called in (luestion, all of 
which will be treated more fully at another time. 

In Kentucky much the same things were undertaken, espe- 
ciallj^ as regards elections and the looking after the loyalty of 
the people. Arrests were carried to great lengths here in 
1864, when both civil and judicial officers, including the lieu- 
tenant-governor, the chief justice, together with the delegates 
to the Chicago convention, were placed in confinement.^ In 
the other States which adjoined these, militar}' rule rested 
more lightly, and was concerned chiefiy with (|uestions of 
lo3'alty. 

Thus, at Cincinnati, Ohio. April 18, 1863, General Burnside 
issued the following order: 

The commanding general publishes for the information of all roncerned 
that hereafter all persons found within our lines who commit acts for the 
benefit of the enemies oi our country will be treated as spies or traitors, 
and, if convicted, will suffer death. 

This order was made to include carriers of secret mails, 
writers of letters thus carried, recruiting officers, men who 
have entered into an agreement to join the enemy, persons 
within the lines who could give private information to the 
enemy, and all people who in any wa\' aided the enemies of 
our country. 

The habit of declaring sympathy for the enemy will not be allowed 
in this department. * * * It is distinctly understood that treason, 
expressed or implied, will not be tcjlerated in this dei)artment.^ 

This was followed by another order which said that the 
publication and circidation of books containing sentiments 
of a disloj'^al tendenc}' came clearly within the reach of the 
above order.^ In these commands treason is defined with 
great care, and the iiuier thoughts of men were brought 
imder the supervision of the military commander, who 
became the sole judge of the woi-ds, thoughts, and actions of 
the people. 

> Anminl Encyclopedia, 1864, p. 423. 
20. R. R., s. I, pt. ■>. V. 23, p. 237. 
»Ibid., p. 382. 



MILITARY GOVERNMENT OF SOUTHERN TERRITORY. 477 

In May of this same year Vallandi<>hain, a ineinbcr of Con- 
gress, was arrested at Mount Vernon, Ohio, for a political 
speech which had criticised the course of the Administration. 
He was tal^en from his home by nioht, hurried to the mili- 
tary headquarters, and tried and condenmed by a military 
commission. The sentence of the court was modified by the 
President to banishment from the Union, and the meml)er of 
Congress was sent South to l)e with his friends. This trial, 
it should be remembered, took place in a State in which the 
courts were still open, and it was undoubtedly the limit to 
which military government went; but the doctrine thus esta))- 
lished was later overthrown by the Supreme Court in the 
Milligan case of 18H6.' 

Passing from the border States to the South, we lind mili- 
tary government reaching its highest development. Here it 
became an instrument of war to hold in subjection concjuered 
territory. Military commanders exercised large governing- 
powers, each in his own district, without much reference to 
others, except as the President or higher oificers might insist 
upon similar measures. This, however, does not mean that 
their legislation was widely different, for it was not, due to 
the fact that each had much the same probh^ns to soh^e; 
hence there resulted a great similarit3^ Much of the govern- 
ment thus formed was local and municipal, the best examples 
of which were New Orleans and Memphis. Such was l)()und 
to be the case, owing to the fact that the amount of territory 
held Avas constantly varying with the movements of the 
armies. The legislation of the commanders, however, went 
far bej'ond municipal regulations. 

Still another form of military government was to l)e seen in 
the appointment of military governors, a tei'm which up to 
that time was entirely new to both State and national laws. 
These men were generally selected from civil life, given a 
military title and powers, and put at the head t)f a State. 
Thus, March H, i802, Lincoln conuuissioned Andrew flohnson 
to be militar}' governor of Tennessee. This t'ollowed soon 
after the troops hacL gained a foothold there, and at a time 
when a large part of the State was in the hands of the rebels. 
John S. Phelps was appointed to a similar office in Arkansas. 

M Wall., ■-'. 



478 AMERICAN HISTORICAL ASSOCIATION". 

and May 2 Echvard Stanley was in like manner sent to North 
Carolina. Instructions were given to these men by the Secre- 
tary of War, thus showing their military character, and the 
object of their appointment is well expressed in those given to 
Stanley: 

The great purpose of your appointment is to re-establish the authority of 
the Federal (ioverniaent in the State of North Carolina, and to provide 
the means of maintaining the peace and security to the loyal inhabitants 
of that State until they shall be able to establish a civil government.' 

Governor Stanley, on reaching his post, made a speech in 
which he urged the people to return to their allegiance. He 
ordered to be closed the colored schools which had been 
opened, as being contrary to the laws of the State, but outside 
of this little or nothing was done. The same may be said of 
Arkansas. The failure to accomplish much in these States 
was due to the constantly shifting character of their territory. 
In Arkansas a convention was called to revise the constitu- 
tion, and Januar}^ 12, 1865, regular officers were inaugurated. 
Ignorant of this, Lincoln ordered General Steele to hold an 
election, and on learning the condition of affairs he gave that 
officer discretionar}^ powers to do as he liked. The result was 
that the commander held another election, and the governor 
thus elected was put in office. This would seem to show that 
it was the militarj^ man pure and simple that was the supreme 
power. 

In 1862 George F. Shepley was appointed militarv governor 
of Louisiana, with the rank of brigadier-general, which was 
the title generally given to these men. Here, as in other 
places, little was accomplished in the way of State government 
till late in the war. As late as the spring of 186-1: General 
Banks said that "the cit}^ of New Orleans is in reality the 
State of Louisiana," and it was only by force of arms that the 
United States kept control over a circumscribed territory. 
In spite of this fact, the same commander, on January 1 1 . 1864, 
ordered an election to be held for governor and other State 
officers. In his election order he said: 

Those who have exercised or are entitled to the rights of citizens of tiie 
United States will be required to participate in the mea.sures necessary for 
the re-establishment of civil government * * * Indifference will be 
treated as a crime and faction as treason.'' 



' E. G. Scott, ReconstrucUun duiing llir Civil War, p. 323 (Bostiiii, ].s".i.3). 
2 Ibid., p. 3.53. 



MILITARY GOVERNMENT OF SOUTHERN TKKRITORY. 47*,) 

Here it is clearly evident that no one was to he allowed to 
staj^at home on election day on -pain of beiny declared a crim- 
inal, while dilierence of opinion would he treated as treason. 

It was in Tennessee that the institution of militar3'g-overnor 
was most succ(\ssful. As already pointed out. Johnson was 
appointed there in 18H2; but it was not till lSt;4 that the State 
was sufficiently cleared of re))elsto permit of efforts at restora- 
tion. However, the military governor had put in force many 
legislative and executive acts, Ordinai'ily it was supposed 
that he would be governed ])v the laws of the State and only 
in extraordinary cases make use of his military power. The 
necessities of the occasion seem to have demanded more of 
the latter than the former. Johnson put the pidpit and pi'ess 
under militarv supervision; made ministers, teachers, school 
officials, and citizens take the oath of allegiance: levied con- 
tributions upon the rich for the benefit of the poor; laid taxes, 
raised troops, and issued military proclamations; took posses- 
sion of the railroads, and built others for military purposes; 
and finally appointed officers to various positions. Some 
doubt was raised as to the ability of the militar}" governor to 
act in political matters, and in order to remove all such 
obstacles, Lincoln issued a commission, September 19, 1863, 
giving Johnson the power to exercise all the rights necessarj' 
for the formation of a government. In September, 1S64, the 
governor ordered elections to be held where possible, and 
elsewhere he would appoint the necessary officials. This gov- 
ernment continued till the State was recognized by Congress 
and taken back into the Union. Its legality has been upheld 
both by the supreme court of Tcninessee and by a c(Histitu- 
tional convention. 

Still another side of military government is seen in the 
sending of Treasury agents into the South, whose duty it was 
to secure cotton and othei' products of the soil within the lines 
of the army, which could be called upon to hcli) tluMU in their 
operations. Closely connected with them was tlu^ regulation 
of trade and connnerce with the South, which was the eco- 
nomic side of the militarv government and was exerclsini 
from Washington, thus superseding tiie conmiandcrs. The 
latter, however, legislated along the same lines upon cases not 
touched ))V the general circulars, or in order to cari'y out the 
general jnstructjons in reference to })ai1icular conditions. 



480 ATMERIOAN HISTOKICAL ASSOCIATION. 

Alongfsid-o of this system should be noted another, viz, the 
case of the freednien. 

These people during the earlier part of tlu^ war flocked 
into the camps, expecting the soldiers to take care of them. 
The able-bodied were followed by crowds of children and 
aged persons, who looked to the army for food and protection. 
As contraband of wai' the}'^ were employed in army operations 
during the first years of the struggle, and then the attempt 
was made to employ them upon abandoned or confiscated plan- 
tations, but the efforts failed through the rapacit}^ of the 
agents in charge.^ In South Carolina they were permitted 
to settle upon lands about to be sold for taxes, not more than 
20 acres being given to each head of a family.^ The next 
step was to form them into large camps, where they were sup- 
plied with rations and forced to work. The number of slaves 
thus brought under the Government control steadily increased 
until the emancipation proclamation and the close of the war 
brought some 3,000,000 under its charge. The AVar Depart- 
ment had oversight of this class till 1864, when thej- passed to 
the care of the Treasury. The first Freedman's Bureau bill 
of March 3, 1865, established a bureau of abandoned lands; 
refugees, and freedmen as a division of the Department of 
War. lender the charge of General Howard and other arnw 
officers the work was carried on for many years after tbfe close 
of the rebellion. Throughout the whole course of the war we 
find army officers legislating regarding the negroes. Thus,. 
General Sherman, after his march to the sea, established 
40,000 destitute freedmen upon the sea islands, and b}' that 
act gave them homes in the richest district of the South. The 
experiment seemed to prove successful, for we find them 
.setting up a form of government, which, of course, caused 
trouble when the war was over and the former owners 
returned. 

Having thus briefly outlined militar}^ government, we will 
pa.ss to a consideration of the functions and powers exercised 
by it. These were along the line of appointment and removal, 
management of elections, regulation of the courts, military 
conmiissions, church affairs, and measures taken for trade, 
labor, and finance. 



' Liilor, Cyclopedia, v. 2, p. L'XO. 

2F. Moore, Rebellion Record, v. .s, p. 2 (N. Y., l.Stil-lStiiS). 



MILITARY GOVERNMEISrT OF SOUTHERN TERRITORY. 481 



IV. 

The executive power of appointment and icnioval <it" otiiccrs 
was used extensively throughout the wai\ Otticials were 
rtuuoved for using' treasonable language, taking the oath to 
the Confederacy, refusal to take the oath of alU'giance, and 
thwarting the will of the commanders. Not only were public 
officials of high and low degree thus removed, but even those 
who were connected with semi public or private concerns were 
looked after. In 8t. Louis General Halleck ordered that tlie 
president, secretary, librarian, directors, and other officers of 
the Mercantile Library Association; president, secretarj^ and 
directors of the Chamber of Commerce should resign if they 
failed to take the oath, and any attempt to exercise their office 
was to be severed punished. ^ The officers and professors of the 
State University were put under similar interdict." Ma3'ors 
of cities, State officials, as 'well as judges and clerks of courts, 
were removed and others appointed in their places. Thus, in 
Tennessee, December 4, 1862, the clerk of the Henderson 
County court was removed for treasonable language, partici- 
pated in by his wife and daughters.'' Even where officials were 
not removed. they were strictly subordinate to the military com- 
mander, and it was by permission of the latter that they were 
allowed to hold their positions. Much if not all of the civil 
policy was dictated by army men, and hence these officials 
l)ecame little more than figureheads. Such action on the part 
of the commanders was not as arbitrary as it would seem, for 
it was to their advantage to retain the civil officials, so far as 
possible, and thus relieve themselves of extra responsibility'. 
Consequently their removals in most cases were for just and 
sufficient cause. 

This power was exercised not alone b}' the commanders, 
but also b}^ the President, and both of these went even further 
and legislated to create new offices. Thus Lincoln established 
the institution of militar}" governor, with extensive powers, 
and also the provisional court of Louisiana, with an entirel}' 
new jurisdiction. The officers of this court were appointed 

'Moore, Rebellion Record, v. 4, \i. b>. 
2 Ibid., p. 129. 
■nbid., V.6, p. 233. 



H. Doc. 548, pt 1 31 



482 AMERIOAK HISTORICAL ASSOCIATION. 

in the North and then .sent South to found the new institution. 
The coranuinder.s, on the other hand, created militar\' conmiLs- 
.sions and courts-martial, and appointed various boards — e.g., 
these of finance, streets, and landings.^ Military government 
not only legislated to create new offices, but it also became 
the sole judge of the eligibility of the officers elected and 
appointed. The attempt seems to have been made to use 
civilians as umch as possible, but when suitable men of this 
.sort could not be found, army officers were taken, and as a 
general rule they were per.sons of ability, Avho ruled justh\ 
The chief appointments of the period were those in cities like 
Memphis, New Orleans, and Nashville, and along with these 
must be placed .those made Ijy the President and the militar}" 
governors, especially Johnson in Tenne.S!5ee. 

Closely connected with officeholding is the matter of elec- 
tions, which were supervised both in the border States and in 
the South by army officers. Thus, in Louisiana Brigadier- 
General Shepley, the military governor, was ordered by Sec- 
retary Stanton to hold an election. Registration of all loyal 
citizens in each parish was first to )je taken, and after that an 
election for delegates to a convention to form a constitution 
and establish a civil government. The convention was to be 
based upon representation of 1 delegate to ever}' 1,250 loyal 
citizens. Authority was also given to appoint the necessary' 
officei's to complete the registration, preside at the elections, 
count, and sort the ballots." Again, we find Johnson, ])y a 
proclamation of January, 1865, confirming the persons se- 
lected by a convention of loyal ])eople to hold an election. 
They were also authorized to hold such elections, which Avould 
seem to indicate that they could not have been held without 
permission, and the executive committee of each division was 
giA'en the power to fill all vacancies.^ 

The most interesting side of election control is to be seen 
in the border States, whose constitutional rights were theoret- 
ically equal to the rest of the Union. At Henderson, Ky., 
Juh'' 28, 1863, an order was issued by which army officers 
were to see that none ))ut loyal persons either acted as election 
judges or voted, and that no disloyal person was a candidate.* 



1 .r. I'artoii, Butler in New Orleans, p. 453 (N. Y., 1864). 
-•O. K. R., s. I, Pt. I, Vol. 26, p. 695. 
•' Report of Joint Committee on Reeonstriicdoii, ]■. '.»-!;{. 
••Annual Encyclopedia, 1863, !>. 568. 



MILITARY G0VP:RNMENT OF SOUTHERN TERHIToKY. 4<S8 

Similar proclamations wcnv issued in other parts of th(^, Statr. 
By another order of July iJit, county judges were to appoint 
the judges of elections, ^vho nuist be Union men, and these 
officials uuist see that no person is placed upon the hooks as a 
candidate who is not a Union man. They were also ordered 
to administer the oath of allegiance to all xoters.' A few 
daj's later the State was put under martial law on the ground 
that a rebel force was trying to intiuence the election. In 
this the commander stated his intention of not interfering 
with the election, and the civil autiiorities uere not to be sus- 
pended by the order. Again, in July, 1865, the sheriff of 
Kenton Count}' was ordered not to [)ermit the name of Al\ in 
Durell to appear upon the poll books.-' All ottendej-s undei- 
these commands were held for trial ])y military connuissions. 
and the sentences were carried out b\' martial law. In Mis- 
souri, October 12, 1864, it was declared that voting conti-aiy 
to orders is a military offense, as is also interf(n-ence with elec- 
tions. Here it was explained what the meaning of the State 
convention was when it said who should vote.'* In this way 
the military became the judge and interpretei" of the civil 
authorities and even of the laws themselves. In Maryland 
the provost-marshals were to assist the election judges in ad- 
ministering the oath of all(>giance, and wei-e lo report all 
those failing to carry out the regidations.^ Thus it was that 
the military authority became superior to the <i\ il, and elec- 
tions came largely under Governnu?nt control. 



Judicial work formed no small })artof military governnuMit 
and was carried out through courts-martial, military connuis- 
sions, provost courts, and ci\il courts which wove established 
by military authority or exercised their functions under its 
sanction. As has been already noted, courts-martial act gen- 
erally upon purely military ofi'enses in which soldiers are 
alone concerned. This is a court fully recognized in the Army 
Regulations and carries on its work in time of peace as well 
as in war. The military commission, on the other hand, arises 

10. R. R., s. I, Pt. II, V. 23, p. 570. 
2 Annual Encyclopedia, 1864, p. 15:?. 
30. R. R., s. I. Pt. III. V. n, p. SOI. 
•»Ibid, Pt. II, V. 11, p. :««. 



484 AMERICAN HISTORICAL ASSOCIATION. 

when the ordiimiy judiciary is overthrown, or in cases where 
civilians as well as niilitar}' are involved. Such courts were 
first established by (ireneral Scott in Mexico, and during the 
'civil war the}" were fully recognized b}- a(*ts of Congress, 
orders of the President, and I)}' rulings of the Supreme Court. 
These courts are constituted by the same authority as the court- 
martial, and are generally composed of from three to five 
members. Their decisions have to be approved by the com- 
mander, and their jurisdiction is generalh' limited to terri- 
tories held under militar^^ government. Cognizance was taken 
of the violation of the laws of war, crimes and offenses recog- 
nized by local courts which were not open, and of all breaches 
of militarj^ orders and regulations. The procedui'c of such 
courts was the same as that of the court-martial, and its deci- 
sions were final; so held by the Supreme Court in the case of 
Ex parte Vallandigham.^ The powers of this institution were 
practically unlimited, as is shown b}^ the fact that fines vary- 
ing from $yo,0(»0 to $250,000 were imposed by it.^ 

The extent of their jurisdiction may be ])est judged b}- 
enumerating some of the causes tried b}- them. These included 
unauthorized correspondence with the enemy, blockade run- 
ning, carrying mail across the frontier, drawing bills of 
exchange, manufacturing arms for the enem}", publicly ex- 
pressing sympathy for the South, violating oaths, aiding pris- 
oners to escape, burning l)ridges, railroads, steamboats, and 
cutting military telegraph, engaging in guerrilla warfare, hin- 
dering enlistments, or aiding deserters. All these are closely 
connected with war and would necessarily come under a mili- 
tary court, at least in hostile territory, but these courts did 
not stop here. They dealt with fraud, embezzlement, bribery, 
breach of the peace, horse stealing, rape, arson, receiving 
stolen goods, riot, assault and liatterv, interfering with elec- 
tions, and election frauds. In many of these no soldier was 
involved, and hence they became purely ci\il cases, but 
nevertheless military courts judged them. 

Where civil courts still existed, supervision was exercised 
to a greater or less degree. Not only was this done, but 
military government Avent further and established uvw civil 
courts. Thus in Missouri the judicial oflScers are commanded 



11 Wall., 243. 
.2 William Winthrop, Abridg. of Military Law, p. 331-35 (N. Y., Is71). 



MILITARY GOVERNMENT OF SOUTHERN TEKRH'oKY. 4X5 

to strictly enforce the laws of St. Louis, and llic ( riniinal 
court is directed to see that there is a full list of o i and jurors 
and that the^' inquire into all crimes.' In Louisiana duriiii:- 
the same year the military governor established a complete 
system of courts based upon that which had pre\iously existed. 
Limitation was put upon the judiciar\" rciiardino- their rioht 
to entertain actions against Army and Navy oiticers, and all 
such cases were dismissed." 

In the towns and cities provost courts were founded \\ hicli 
were military in character and had jurisdiction onci- both 
criminal and civil cases. They not only did the work of the 
ordinary police court, but also that of the lower State courts. 
In New Orleans a court of this sort rendered a judgment for 
$130,000,'' and it also dealt with the administration and suc- 
cession to estates, together with divorce.' These courts were 
in general governed by the laws of the State in which they 
wer-e held. 

One of the strangest features of all the judicial legislation 
of this period was the foundation of the provisional court of 
Louisiana. This was established l)y the President in an ordei- 
of October 20, 1802. in Avhich he said that the judiciary had 
been overthrown and that there was a necessity for s(Mne kind 
of a court. The order said: 

I have therefore thought it proper to appoint, and I do lierel)y consti- 
tute a provisional court which shall be a court of record for the State of 
Louisiana; and 1 hereby appoint Charles A. Peabody, of New York, to be 
a provisional judge to hold said court, with authority to hear, try, and 
determine all causes, civil and criminal, including causes in law, equity, 
revenue, and'admiralty, and particularly all such powers an<l jurisdictions 
as belong to the district and circuit courts of the United States, conforming 
his proceedings so far as possible to the course of proceedings and jii-actice 
which has been customary in the courts of the United States and Uouisiana, 
* * * his judgment to be final and conclusive.'' 

As a judge, he was to have power to establish lules and reg- 
ulations for the exercise of his own jurisdiction, and in addi- 
tion he was given the power to appoint the prosecuting att( )rney , 
marshal, and clerk of the court, wiio wvvo to perform their 
duties according to the rules given by him. The appointments 



'General Orders, No. 39, Feb. 14, 1862. o. K. K., s. II, v. 1, \k li>; 

20. R. R., s. I, Pt. II, vol. 5,S, p. 1005. 

^\\. Hirkliimer.Mil. Gov'ts Mar. Law, ]>. 105. 

■» Annual Eiic.Vflopedia, lS(i:i, p. 77i. 

'Ibid, i)p. 770-775. 



486 AMERICAN HISTORICAL ASSOCIATION. 

were to continue during- the pleasure of the President, ))ut 
were not to last l)eyond the period of niilitary occupation or 
the restoration of peace and civil authority. These men were 
paid by the War Department, which clearly shows their char- 
acter. This order gave to .Tudge Peabody judicial power over 
all kinds of cases, and appeal, which in the nature of things 
would have been to the President, was forbidden by the order 
organizing the court. Thus it became the Alpha andOmegaof 
justice for Louisiana, 

The court sailed from New York with General Banks's expe- 
dition, and went into operation in January, 1863, being at 
once occupied with important business. So far as possible 
the laws in force in the State were adopted, but orders of the 
commanders were recognized as of paramount authority.^ It 
was careful to avoid anj^thing like a militar}" administration 
of justice, and was always governed by the principles of law. 
In criminal cases a grand jury was summoned to procure an 
indictment and a regular jur}' to try the case. As an illustra- 
tion of the speed with which the court acted, it may be noted 
that three capital cases were tried in one week, two of which 
residted in conviction. Such an example might well be placed 
before some" of the courts of the present day, where justice is 
often delayed for years. Crimes against the person had sel- 
dom l)een punished in that locality l)efore, and a valua])le 
lesson was thus taught, of w^hich all law abiding people ap- 
pro\'ed. Before the court came many cases which had been 
previously tried in the provost court, whose arguments ^\■^n•e 
oral, no notes being taken of the evidence, and the decision 
being given soon after tiie arguments were heard. This, of 
course, caused nuich difficult}', and yet the provisional court 
as a general rule sustained the decisions of the lower court, 
finding it easy to do so on strict legal principles.- Such facts 
throw an interesting side light upon the efficiency of the provost 
court, which was presided over by a soldier. Prize cases were 
l>r()iight t)ef{)i"e the provisional court. l)ut it refused to entertain 
them upon the ground that its jurisdiction was derived from 
the President and not from the Constitution. This was done 
in spite of the authority given to treat of such actions. 

1 Aunuiil Kiu-ycU>i)i'(li!i, lSti:5, p. 771. 



MILITARY GOVERNMENT OF SOTTTHKKN TKRHITnin. 4ST 

vr. 

Union of church and state has boon viooioiisU opposiul in 
this countiy, and many of the oarh' inhabitants of America 
came hither as a protest ao-ainst that system as it existed in 
Europe. The feeling against the union of the two institu- 
tions has been so strong that it has become incorporated in 
the Constitution, and is regarded as one of the tenets of true 
democrac3\ As already pointed out, however, ordinary rights 
give wa}^ in time of war, and consequentlv we find military 
government interfering with ecclesiastical matters and church 
management. Freedom of worship was curtailed, and minis- 
ters were told how they must act and how not. The greatest 
trouble arose in regard to prayers, which were omitted for 
President Lincoln and otl'ered for fleti'erson Davis, as presi- 
dent of the Confederac}'. Such proceedings were at once 
stopped by the commanders. The Southern ministers got 
around this by omitting to read the prayers for the country 
and the President, and instead the people prayed in silence 
for the welfare of the South and the triumph of its cause. 
Another device was to omit prayers of all sorts at that point 
in the service. This was advised by Bishop Wilmer, of Ala- 
bama, whose action called forth an order from the officer in 
charge of that district, forl)idding the ministers to preach or 
hold divine service, and at the same time closing their places 
of worship until they should show a sincere retui'n to their 
allegiance.^ 

Generai Baker gives an instance of a church 2;") miles from 
Washington where the minister had the key- to the building 
and would not allow the loyal people to enter. The general 
went to the ministin- and forced him to urdock the door. RcIjcI 
sympathizers attempted to break up the meeting, with the 
result that they were arrested and conveyed to prison at 
Washington.^ We tind (reneral Butler removing Rev. (xeorge 
D. Armstrong, a Presbyterian clergyman of Norfolk, and 
sending him into c(niHnement at Fort Ilatteras, N. C. This 
man had taken the oath of allegiance and had prayed for the 
President, but was. not fulh' in sympathy with the Fnitcd 
States.'* In New Orleans the same general had a great deal 

IT. B. Van Horn. General Thomas, p. 409 (N. Y., 1882). 

2L. C. Baker, History of the Secret Service, p. 230 (Phil., lMi7i. 

3G. H. Gordon, War Diary, p. 407 (Boston, 1882). 



488 AMKRICAN HTSTORIOAL ASSOCIATION. 

of trouble with the churches. He found that they planned 
to celebrate a fast day in accordance with some proclamation 
of Jefferson Davis, and consequently at once ordered that no 
such fast should be held. ^ 

In Mississippi we find permission given to a certain bishop 
to return to his home and duties till the pleasure of the 
War Department is known. The same order also permitted 
the people to conduct divine service as the^' pleased, saying 
that pu))lic prayer for the President of the United States was 
no longer necessary.'^ This shows that there had been ver}' 
strict supervision previously, even going so far as to banish 
men who acted contrary to the wishes of the military. John- 
son in Tennessee called the ministers before him and ordered 
them to take the oath, and on their refusal sent them to 
prison.'' In St. Louis a Dr. McPheeters was removed from 
his church because he had a rebel wife, rebel relations, and 
expressed rebel sentiments. The matter was brought to the 
attention of Lincoln, who said that the general upon the spot 
must be the judge, but that the United States could not under- 
take to run the churches of the country.* Ministers in some 
cases were arrested in the midst of the service, taken to prison, 
and afterwards tried b}'^ militar}^ commission. An order of 
November 30, 1863, appears to have been issued from the 
War Department giving to Bishop Ames the control and pos- 
session of all Methodist churches in certain of the Southern 
States whose pastors had not been appointed b}- loyal bishops, 
and ordering the troops to help in the carrjnng out of these 
orders against all resistance." The question was also involved 
in the disposition of church property, as between loyal and 
disloN'al claimants, and conse([ucntly lasted till after the war. 

Alongside of the freedom of the pulpit might be pliiced 
that of the press, which is apt to do a great deal of harm iri 
time of war. After Fremont had declared martial law in 
Missouri the provost-marshal suppressed the War Bulletin 
and the Missourian, published at St. Louis, for making- 
false statements about military movements.* The editors of 

'O. R. R., s. I, V. 15, p. 426. 

2 Annual Encyclopedia, 1861 p. 549-551. 

3 Ibid., 1862, p. 7G7. 

•t Lincoln '.s Works, v. 2, i>. 21)0. 

■'•Ibid., J). 486. 

^Annual Encyclopedia, 1.S6], p. ;i2y. 



MILITARY GOVERNMENT OF SOUTHERN TKKRI'l'oin . 4S<) 

the Christian Advocate soon after this made in(|iiii'i('s as 
to what they would ho pcrniitted to print. The pi'ovost-niar- 
shal replied, advising them to refrain from publishing })oliti( al 
articles and keep their paper a religious one, as it pretended 
to be.' j\Iay 11. IS*;;^), (leneral Davidson prohibited tiie .sa!(! 
or distrilMition at St. Louis of the New York Freeman's ,Ioui-- 
nal and the Caucasian, the Columbus Crisis, Chicago Times, 
and the I)ul)uquc Herald." flune 21, (xoneral Schenck forbade 
the editors of the Baltimore papers from i)u])lishing extracts 
from the New York World, Express, Caucasian, Cincinnati In- 
quirer, and the Chicago Times. ' These uiav serve as examples 
of this power, which was exercised very widely, ati'eeting 
papers both in the North and in the Soutii. ' 

VII. 

We now come to one of the most important phas(\s of mili- 
tary government, vi/, its economic legislation, which allcctcd 
the very foundations of the society over which it i-uled. The 
result of this woi'k was a great mass of laws and regulations 
relating to trade, laiior, and iinance. The necessity for such 
legislation grew out of the fact that part of the country was 
under the control of an enemy with whom no trade could be 
allowed; in the second place, a slave race had been made free, 
and slave labor had been exchanged for free labor, a change 
which struck at the foundations of a society; and, third, a 
depreciated paper currenc}^ had b(>en established in the South, 
which became the only medium of exchange. In order to 
prevent these elements of chaos from gaining the upper, hand, 
military authority came in as the protector of the people. 

The first regulations of trade were adopted by the (xovern- 
ment at Washington, and dealt with intercourse with th(! South, 
out of which there grcAV an extensive sj^stem of Treasury rules 
and agents. Under this, special licenses were issued which 
gave the holder the right of trading in a limited district. The 
regulations in regard to cotton are well illustrated by General 
Orders, No. 61, issued at Murfreesboro, Tenn., March 29, 



^Annual Encj'clopcdia, IStn, p. :{28. 
2 Ibid, 1863, p. 423. 
•nbid., 1S(;3, p. 424-425. 

4 There wore suppressions in Maryland, District of ■ Columbia, Kentucky, Missouri. 
Louisiana, Virginia, and Tennessee. See .Vnnual Encyclopedia, l.si;4, )>. 394. 



490 AMERICAN HISTORICAL ASSOCIATION. 

1808. All citizens desiring to purchase this staple must pre- 
sent ample vouchers of their loyalty to the United States, 
and in addition sign agreements that they will abide by the 
Treasurj'^ rules. After getting possession of the cotton, they 
had to forward to the Provost-Marshal-General a statement of 
the price paid, amount purchased, and the name of the seller. 
The. party making the sale was only permitted to receive pay- 
ment in full on presentation of proper evidence of loyalty, and 
until that was given not more than ten per cent of the contract 
price could be paid.^ 

Trade with the negroes was regulated in numerous orders.^ 
Thus, no one could purchase clothing from lal^orers, or their 
property, without permission of the authorities; neither could 
liquor be sold to the colored people, on pain of fine.'' No 
license, tax, or fee could be collected for engaging in certain 
occupations, and all transfers of property, real or personal, 
by persons not yet returned to their allegiance were declared 
to be null and void.* Under the regulation of trade came the 
control of the railroads, which were largely taken over by the 
Government. Consequently travel was supervised, and in man}' 
places a troublesome system of passes was put in force, which 
t)V no means increased the pleasure of travel. In Louisiana 
all appropriations for railroad material had to be appro\'ed by 
the military superintendent." 

The (Question of labor presented itself as soon as the ti'oops 
moved South, for the contrabands flocked to the camps and 
were allowed to remain for the slight work they might do. 
After the (unancipation proclamation steps were taken to 
establish rules for this large class of unemployed. August 
10, 1863, camps were established at all military posts in the 
States where slavery had been al)olished, into which the 
negroes were gathered under suitable officers, and rations 
were furnished them in return for labor. Thej^ could-be hired 
to planters on promise that they would not Ix^ taken outside 
of military jurisdiction, and to insure the keeping of that 
promise bonds were demanded. These negroes were fre- 
(juently employed upon public works, in gathering the crops 

10. R. R., s. I, Pt. II, V. 23, p. 189: also Pt. H, v. 17, ]>. m;. 

2 Moore, Rebellioii Record, v. 8, pp. 370-372. 

sibid., V. 8, p. 370-374. 

*0. R. R., s. I, Pt. I, V. 15, p. ft73. 

f'lbid., Pt. II, V. 48, p. 777. 



MILITARY GOVERNMENT OF SOUTHERN TERRITORY. 401 

from abandonod plantations, and in any other matters wliicli 
were considered for the best interests of the department. 
Ever}^ colored person about the military posts had to be 
employed by some white, or else he was sent to the (•ann)s. 
Contracts mioht be made with the freedmen for their labor at 
so much per month, or persons might employ whole families, 
clothing, feedino-. caring- for the sick and infirm, and oi\ino- 
them in return for their services not less than one-twentieth 
of the crop. All such parties had to register with the provost- 
marshal, giving their names, occupation. I'esidence. and the 
number of negroes to be employed. Honds had also to l)e 
given for kind treatment, proper care, and as security against 
carrying them away.^ 

The commanders even went further in some cases and set- 
tled the hours of labor, wages, etc. Thus (xeneral Banks in 
Louisiana, February 3. ISfU, ordered that the hours of labor 
in winter should be nine and in sununer ten, for which they 
were to be paid at the rate of $3, $6, and $8 per month, half 
of the amount being reserved till the end of the year. The 
laborers were to be given a portion of the land to cultivate on 
their own accoutit, and in all conti'acts of this sort tiic ci-()j)s 
were to stand pledged for the labor. The negroes could 
choose their employers, but once chosen they must stay by 
them, and they could not ])ass fron'i one place to anothci' ex- 
cept in accordance with the rules of the provost-mai'shal. In 
conclusion, the general said: ''These regidations are based 
u])()n the assumption that lal)()r is a public duty and idleness 
or vagran-cy a crime."' This order is typical, es])ecially in 
holding the crops as a })U'dge for wages, the i-eservation of 
the latter till the end of the year, care of the sick and 
disabled, and the tiling of lists of employed witii the })ro\ ost. 
This officer also settled all disputes that might arise over 
contracts, or between laborers and their employers. 

Before leaving this subject we must notice the regulations 
put forth at St. Louis in 18<)1. in which the president and 
directors of railroads had to tile bonds that they would em- 
ploy only Union men.' It was further asserted that there 
existed combinations of persons to prevent mechanics and 

iMcPherson, Political Manual, 186S, p. 294 (Washington, 1868) 

2 Moore, Rebellion Record, v. 8, pp. U70-37'2. 

3 Ibid., V. 4, p. 129. 



492 AMERICAN HLSTOKICAL ASSOCIATION. 

laborers from workinof in manufactnring- establisliiiionts ex- 
cept upon terras prescribed by outsiders. Consequently it 
was ordered that such persons should not attempt to prevent 
other people from working on such terms as they chose, 
especially in places manufacturing goods used in the naviga- 
tion of Western waters or in transport service of the United 
States. No person ,vas to hang about or annoy employees, 
nor was any association to dictate to the proprietors.^ Here 
is legislation that might well be studied b}^ those who seek to 
check the power of the modern labor union. 

When military government first took up its task it was 
confronted with the question of iinance, which demanded 
immediate attention. Butler, in taking possession of New 
Orleans, found that the Imnks were paying their de])ts in 
Confederate money and at the same time obliging those who 
owed them to pay in United States coin. He compelled the 
])anks to pay no more Confederate currrency to creditors 
and depositors, and ordered that all deposits be paid in notes 
of the bank. United States Treasury notes, or in gold and 
silver. Private })ankers were to receive and pa}' out only 
notes of city ])anks or United States currenc}'. Savings banks 
were pcn-mitted to issue notes not to exceed one-third of their 
deposits and in denominations of not less than one dollar, for 
whose redemption their assets were made liable. Incorporated 
banks were permitted to issue notes in denominations from 
one to ti\'e dollars, notwithstanding an^'thing to the contrary 
in their charters. All persons and firms who have issued 
" shinplasters"' nuist redeem them on presentation at their 
places of l)usiness between the hours of 9 and 3, either in 
gold or silver. Treasury notes, or in the currency bills of 
the city ])anks, upon penalty of contiscation of their pro])erty 
or imprisonment at hard la))or. Private banks were also 
allowed to issue notes in proportion to the specie that they 
could show in their vaidts to a military commission." 

This was followed bv an order which forbade bank notes 
being exchanged for rebel currency' of any sort. Transfers 
of property made in consideration for such money were 
declared null and void, and the propertv was confiscated.'' It 
was further decreed that dividends, interest c()ui)()ns. and cer- 

1 O. R. R., s. I, Pt. Ill, V. 34, p. 345. 

2 0. R. R., s. I. V. 15. pp. 437^38. 
••'Ibid., p. 426. 



MILITARY GOVERNMENT OF SOUTHERN TERRIToUV, 4'.)8 

tificates of stock duo to llnitod States citiziMis ami held l)ack 
.should be paid at once. All hanks were eoinpelled to make a 
statement at certain times to a board of finance, made uj) of 
mihtar}' appointees.' Speculation in uojd iiiid silver with the 
South was forbidden, and no coin was allowed to pass l)eyond 
militar}^ jurisdiction. United States Treasury notes were 
declared leo-al tender, and refusal to take them resulted in 
arrest and seizure of crops. 

Local taxes were enforced by the military, and in addition 
special taxes were laid upon certain classes. In New Orleans, 
Butler discovered a list of |)ersons who had contributinl to the 
support of the Confederacy, and at once levied upon them for 
the support of the poor.^ Along- with this went the se((ues- 
tration of property of those who were enoai»('d in rebellion. 
In Louisiana foreclosure of mortgages and forced sales were 
forbidden except where such action would be contrary to 
justice and equity. However, if taxes could not be paid, 
forced sales were permitted to satisfy the claim.'' Not only 
did Butler display his abilities as a financier in New Orleans, 
but also in the Department of the James, where he raised a 
large civil fund by levying special taxes upon those carrying 
on a speculative trade* under permits. General Gordon, his 
successor in this field, also laid taxes, licenses, and fees for a 
similar fund. The extent to which finance was carried by the 
commanders undoubtedly reached its limit in Tennessee, where 
General Mitchel sold captured Confederate bonds to the rebels 
at a gain of some $5, 000.'^ 

VIII. 

In the municipal as in other branches of govei-nment the 
military exerted a positive and a negative influence; it estab- 
lished and destroyed; it legislated and it vetoed. Along the 
positive side it founded courts, legislated regarding prop- 
erty, set up bureaus which had charge of ditt'erent phases of 
city life, put in force a S3'stem of licenses. a])pointed otticials, 
and established police forces. On the negative side it dis- 

10. R. R., s. I, V. 15, pp. 518, .527. 

-K41,91t).25 was thus raised. I'arton: (ionoral Butler in New Orleans, pp. :}10-311. 

3 0. R. R.. .s. I., Pt. II, V. 41, p. 801. 

<Butler'.s Book, p. 813 (Boston, 1892). 

6F. A. Mitchel: Ormsby Macknighl .Mitchel, eluip. i:i (Bo.ston, 1S«7). 



494 AMERICAN HISTORICAL ASSOCIATION. 

placed officials, set aside former regulations, disapproved the 
action of the civil authorities, and put a veto upon the news- 
papers. Such, in outline, is the work done by military gov- 
ernment in the municipalities, some phases of which we will 
examine in more detail. 

When this government was first established in the cities, 
public order was the thing demanding immediate attention. 
Consequently regulations were put forth for the police, defin- 
ing their powers and seeing to the efficient working of the 
same. Frequently such bodies were completely reorganized 
as a military force, or else they were put under the control of 
a military officer.^ As another aid to public order, provost 
and military courts were founded. Vagrants were- forced to 
work upon the public highways, and restrictions were laid 
upon the citizens in regard to closing their social gatherings 
at a certain time,^ a rule which was only strictly enforced 
wiien the enem}^ were near. Then there were a vast luiniber 
of questions relating to loyalty, e. g., the carrying of the 
Confederate flag, insulting the Union flag and the officers and 
soldiers of the United States. 

General Butler started his government of New Orleans with 
a proclamation asserting that he did not wish to interfere with 
the nmnicipal authorities, but onl}' to rule the military forces 
of the department and take cognizance of the ofl'enses com- 
mitted b}" or against them.^ This policy he was not able to 
carry out. The streets were not cleaned as they should have 
been, and so he compelled the authorities to employ 2,000 
men with the proper instruments for thirt}' days, each man to 
receive 50 cents per day, and skilled labor to be paid at a 
higher rate.* The work was done most efl'ectiv^ely under the 
direction of a military superintendent, and the people were 
forced to acknowledge that "the Federals could clean the 
streets, if they couldn't do anything else."^ Butler had a 
great deal of troul)le with the foreigners of New Orleans, who 
were largel}^ in svmpathy with the South." He was forced to 



iQ. R. R., s. I., Pt. ir, V. 17, pp. 294-295. 
•^ Ibid., p. 295. 

^Parton: GenLTiil Biitk'r in New Orleans, p. 295. 
Mbirl., pp. 317-318. 
5 Ibid., p. 309. 

'' In one case Butler seized a sum of money in oltiee of consul of Nethcrliuids. 
nual Encyclopedia, 18C2, p. 1547. 



MILITARY GOVERNMENT OE SOUTHERN TERRITORY. 495 

use rather vigorous measures against them, with the results 
that many complaints were made to the United States Gov- 
ernment by foreign representatives. 

The greatest trouble here as elsewhere was with the women. 
This class finally acted so outrageously that the general was 
forced to issue the following order: 

As officers and soldiers of the United States have been subjeetetl tn 
repeated insults from the women (calling themselves ladies) of New Orleans 
in return for the most scrupulous noninterference and courtesy on our jiart, 
it is ordered that hereafter when a female shall by word, or gesture, or 
movement insult or show contempt for any officer or soldier of the I'nited 
States she shall be regarded and held liable to be treated as a woman of 
the town plying her vocation.' 

It is needless to say that the soldiers wim-c no longer spit 
upon, and at least outwai'dly were shown respect. The order 
aroused great feeling in parts of the North, and especially in 
England and France. Here it was looked upon as giving free 
license to the soldiers, but such it did not prove and certainly 
was not intended to be. Upon this sul)ject Lord I'almerston 
carried on quite a correspondence with our minister, Mr. 
Adams, in which the latter got the best of the tilt." 

In Memphis an extensive system of registration was en- 
forced, by which loyal as well as disloyal had to enroll witli 
the provost. Those who enrolled as loyal had to take the oath 
of allegiance, and if the i)rovost had (l()u])ts as to the good faith 
of the persons he could require bonds. Registered enemies 
were not allowed to vote, or exercise any other franchise or 
privilege, or appear as plaintiff or attorney at law ])ef()re any 
court. They could not hold any position of honor or trust 
within the city, neither could they conduct any business or 
profession. Persons who remained enemies aftei- one year 
were banished.'' 

An important experiment in nuuiicipal government was 
tried at Nashville. On the i)ermanent occupation of the tt)wn 
as a military post there was a great increase of the social evil, 
which seriously affected the health of the soldit>rs. Eai'ly in 

10. R. R., .'^. I:, vol. 1.5, p. .510-511, 426. 

2C. F. Adams, Life of Charles Francis Adanis, chnp. 13 (Boston and New York, liRXH. 

3 General Orders, No. 65, May '26, 1865, Memphis, Tenn. 



49r) AMERICAN HISTORICAL ASSOCIATION. 

1S(>8 tlu' commander attempted to remedy th(^ matter byg-ath- 
ering- these people together and shipping them out of the eity 
An attempt was made to land this cargo at Louisville, Ky. , 
but tiie authorities refused to receive them. They were then 
taken to Cincinnati, where similar treatment was offered. In 
August the War Department ordered the steamer to return to 
Nashville, with the result that sickness at once increased. A 
plan was then worked out b}' which these people were placed 
under medical supervision and permitted to ply their vocation 
upon paj'uieut of a license. The mone}^ thus received was 
used for the support of two hospitals, with the result that 
sickness entirely disappeared.^ The system which was thus 
started by the militar}^ has since been used with great success 
in Europe, Japan, and some cities of this country. 

IX. 

From this brief stud}" of the functions exercised b}' mili- 
tary government it is perfectly clear that it was an absolutism 
of the most complete sort. Not only was the government 
a))solute, but it was also paternal in that it regulated the 
social conditions of life, especially as i-egards the relations of 
the whites and the negroes. One might go further and say 
that it was despotic in that the power was in the hands of 
a few men whose will was law. While all these adjectives 
may be applied, and have often been used in the description 
of that institution, j^et these are not the vital questions. 
Whether a government is absolute, paternal, or despotic 
makes little difference, for in times past we have had such 
forms of government and they have proved most effective. 
Hence, the question which should be asked here is, whether 
or not militay government was efficient; did it rule justly and 
for the l)enetit of those over whom it was placed i 

There can be no question as to the efficiency of this govern- 
ment during the period under discussion. New Orleans, 
under Butler, was cleaned as it had never been before in its 
history, and for the first time in ^ears yellow fever had been 
kept at a distance.^ For the first time also justice was thor- 



1 Annual Encyclopedia, 1864, pp. 769-771. 
sParton, General Biitlcr in New Orleans, p. 398. 



MILITARY GOVERNMENT OF SOUTHERN TERRITORY. 497 

oughly done in thtit city.^ In roforciice to Butlers action in 
New Orleans it is well worth while quoting the letter of Gen. 
Jeff Thompson, a Confederate leader, which deals with the 
"woman" order and the condition of affairs in the city. 
"What your intentions were when you issued the order which 
brought so much censure upon 3'ourself I, of course, can not 
tell, but I can testif}^ and do with pleasure, that nearly all of 
the many persons who passed through nn' lines to and from 
New Orleans during the months of August and September, 
1862, spoke favorably of the treatment they received from 
you; and with all my inquiries, which were constant. 1 dirt 
not hear of a single instance of a lady being insulted by your 
command."' The same evidence maybe^had upon the effi- 
ciency of this government in Atlanta. Chattanooga, Savannah, 
and Baltimore.^ The question was put to vote in Norfolk as 
to whether the}' would rather be under the Fierpont gov- 
ernment, which was civil, or the '"strong and steady govern- 
ment of the military arm," and the vote was overwhelming in 
favor of the latter.* Another straw which shows the condi- 
tion of affairs is that Southern writers hav(^ little to say 
against the militar}' government of this period. It is worth 
our while to notice also the words of S. A. Goddard, the 
English correspondent: 

No complaint, to my recollection, has been made agains-t them (the gen- 
erals) in any of the Southern towns that they occupied. On the contrary 
their course has elicited the highest praise, and while exposed in many 
cases to the gratuitous insults of females, their course toward them has been 
marked by extreme forbearance and politeness. This is universally 
acknowledged.* 

Again, if we study the orders of the commanders in rela- 
tion to the conditions and problems which the}^ were intended 
to solve, the}^ seem to be eminently just and Avise. Justice 
was administered b}- military courts with great fairness and 
without unnecessar}^ delay. 

1 Parton, General Butler in New Orleans, p. 432. 

2 Butler's book, p. 419. 

3Capt. D. P. Conyngham. Sherman's March through the South, pp. l>J4, 'JSl. 2'M 1 N. Y. 
1865); John A. Dix Memoirs, v. 2, p. 34. 
*The Solid South. Edited by H. Herbert, p. 223. (Baltimore, 18iH).) 
5S. A. Goddard. Letters on the American Rebellion, pp. 80-81. (London, etc., 1870. t 

H. Doc. 54:8, pt 1 32 



498 AMERICAN HISTORICAL ASSOCIATION. 

MilitaiT government is important not only for the efficiency 
with which it met the difficulties of that period, but also as a 
link in that mit^hty process which crushed the rebellion, 
destro^'cd slavery, and reunited a divided c-oimtry. It was an 
important factor in chanoing the social structure of a soc'iet}^ 
and preparing the way for the changes which were to follow. 
Consequently, as forming the basis of reconsti'uction, it plays 
an important part in the years of difficulty which followed the 
close of the war. 




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